Walsh: Obesity as "intermediate step"
/Walsh v. Wilkie, docket no. 18-0495 (February 24, 2020)
HELD: Obesity may be an “intermediate step” between a service-connected condition and a nonservice-connected condition when the service-connected condition aggravates the obesity. The service-connected condition need not cause the obesity.
SUMMARY: Veteran was service connected for bilateral knee, hip, and back conditions and sought service connection on a secondary basis for hypertension and sleep apnea. While her appeal was pending, VA issued a General Counsel Precedent Opinion (GC Prec. Op. 1-2017) stating that while obesity is not a disability for VA compensation purposes, obesity can serve as an “intermediate step” between a service-connected and nonservice-connected condition under 38 C.F.R. § 3.310(a). VA then sought a medical opinion to determine (1) whether the veteran’s service-connected conditions “caused” her to gain weight or become obese and, (2) if so, whether the obesity was a “substantial factor” in causing her hypertension or sleep apnea, and, (3) if so, whether those conditions would not have occurred but for the obesity that was “caused” by the service-connected condition. The examiner provided a negative opinion, focusing on the causation and “but-for” factors – and the Board relied on the opinion to deny the claim.
On appeal to the Court, the veteran argued that the GC Opinion requires VA to determine whether the obesity was caused or aggravated by the service-connected conditions. The Court agreed, noting that the GC Opinion does not mention aggravation. Still, the Court found that “the principles contained in § 3.310 make any distinction in G.C. Opinion 1-2017 between causation and aggravation legally untenable.”
The Court first noted that GC Opinions are binding on the Board, but not the Court. Turning to the language of the regulation: section 3.310(a) states that a “disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.” Section 3.310(b) states: “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.” The Court found that the “operative language in these provisions is essentially identical” because “[b]oth discus something that ‘is proximately due to or the result of a service-connected disease or injury’ and advise that this ‘shall [or will] be service connected.’” The Court found that “[n]othing in this language justifies a distinction between causation and aggravation in the first step of the analysis in G.C. Opinion 1-2017.”
The Court thus held that “there is no permissible basis in the relevant regulation for concluding that obesity may be an ‘intermediate step’ in a secondary-service-connection analysis when service-connected disability causes it, but not when service-connected disability aggravates it.” Regarding the absence of the word “aggravation” in the GG Opinion, the Court found that the opinion “does not purport to prohibit inquiry into whether a service-connected disability aggravates a veteran’s obesity” since “this would contradict VA’s aggravation regulation.” The Court clarified that “[d]espite the G.C. opinion’s silence regarding aggravation, the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record.” The Court remanded for the Board to obtain a new medical opinion that addresses whether the veteran’s service-connected conditions caused or aggravated her weight gain.
